9.1 INTRODUCTION
The share capital maintenance routines have changed from one of tracking the number of shares in issue by the CIPC to placing more emphasis on changes to the MOI and keeping these changes up to date. The structure of the share capital must be kept up to date in the MOI. The CIPC does not need to know about shares in issue. It is very important that the registered office has all the necessary registers available for inspection and that this is up to date.
Under the old act, we produced a set of forms and selected Table A or B and made changes to the articles required. In smaller companies, it was rare to make changes to the Articles as mostly table B was used. Now with the emphasis on the MOI and the one size fits all approach we need to make sure it is in harmony with the new act and we need to run the process of change very professionally. I can’t tell you how many times where interested parties on inspecting a register of special resolutions can’t get it or it is not correct which makes it very embarrassing for the Secretarial Practitioner.
Changes to the MOI require a special resolution and the submission of Form CoR 15.2. There are other transactions or events that also require a special resolution. Not all special resolutions need to be filed with the CIPC.
There are 2 kinds of resolution an ordinary resolution and a special resolution. A resolution is a decision to be taken by the company at a meeting of shareholders, which is called with proper notice and then voted upon at the meeting in terms of the law and the MOI.
Directors can also have a meeting and pass a director’s resolution. The shareholders or the directors resolve that something is to be carried out on a decision that is to be taken. An ordinary resolution requires a vote of more than 50% to pass and a special resolution requires a vote of 75% as a rule but in certain instances this can be modified by the MOI. I.e. 65% for the special resolution and 60% for the ordinary resolution.
Directors can take resolutions that they are authorised to make in regard to management decisions and resolutions they are entitled to make in terms of the act and the MOI. They would need to refer certain decisions back to the shareholders where they are not authorised to make those decisions in terms of the act and the MOI.